Amupitan: Padding is Lawful, Constitutional

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In this interview with Seriki Adinoyi, the former Dean, Faculty of Law, University of Jos, Professor Joash Ojo Amupitan cleared the air over some raging controversies in the National Assembly, especially as regards the budget padding allegations and immunity for lawmakers. Excerpts:

Recently there has been this controversy about budget padding in the National Assembly. Legally, what is budget padding, and how is it different from forgery?
Talking about budget padding, there are two important words there. First is budget, and then padding. A budget is a proposal, an estimate of the income and the revenue that is derived or to be spent in a given year. In every financial year, there must be an estimate of government expectations from the various sources of revenue, including taxation, as well as expenditure. The essence is to know whether there is balanced, surplus or deficit budget. Budget, therefore, refers to the process of determining how you are going to spend your money.

When you talk of padding, it means something added unnecessarily or dishonestly. For instance, I have written a speech and you decided to add what is not there to it. Or a budget has been prepared and then you have included items or you have made a false charge when you don’t have the power to do so. And you are trying to present it to the public as if that was what has been done by the authors – those that are vested with the authorities and powers to prepare and enact the budget to law. Budget padding is a novel concept in Nigeria jurisprudence because even the president said it was for the first time in his life he was hearing about budget padding.

How is it different from forgery?
As far as the constitution of Nigeria is concerned, there is nothing here that has been dishonestly or fraudulently done by the Speaker or by the Deputy Speaker (at least there is no proof of it) because they have acted within their legislative powers. It is if it was somebody that is not empowered by the law that you can now begin to say you have forged something. So, you need to understand the allegations or controversies around the budget padding in the National Assembly, and may be the situation of forgery must be understood properly.

The question you have to ask yourself is whether they have the constitutional powers to enact budget. A budget within the ambit of our laws, in Section 80 of the Constitution of the Federal Republic of Nigeria, especially section 82, it is very clearly stated that no money shall be withdrawn from consolidated revenue fund of Nigeria except as it is authorised by the National Assembly. And of course, the power of the purse belongs to the National Assembly, most especially in the United States.

In Nigeria, it is clearly stated in section 80 sub-section (2), that no money can be withdrawn from the federation account to meet any expenditure whatsoever except it has been authorised through what is known as the appropriation act or a supplementary appropriation act in pursuance of section 81 of the Nigerian constitution.

It shows clearly that the process of budget making in Nigeria is a joint responsibility of the president and the National Assembly, because it is clearly stated in section 81 sub-section (1) of the constitution of Nigeria 1999, as amended, that the president shall cause to prepare and lay before each House of the National Assembly, at any time of each financial year, estimate of the revenue and expenditure of the federation for the next following financial year.

Now, as soon as this is done, each House of the National Assembly is expected to now begin to commence what is known as legislative debate of the estimate of revenue and expenditure as submitted by Mr. President. And of importance again is the provision of section 59 of the constitution of Nigeria which states that the budget as presented by the president must be in the form of an appropriation bill. And a bill, of course, is what initiates a law; law is passed through a bill introduced into the House.

So the moment the president presents the budget to the National Assembly, then it becomes an appropriation bill. And the National Assembly must therefore exercise their constitutional powers under section 58 and 59 of the constitution so as to pass the bill to become a law. When you talk about a budget within the context of a country, you are therefore talking about a law. If it is intended in the constitution that the National Assembly cannot make any change to the estimate as prepared and presented by the president, then there is no need for it to have come to the National Assembly in the first place.

If the National Assembly can so alter the budget, why the uproar; what’s the confusion about?
The confusion about the whole process is that we seem to lack basic understanding of the constitutional law and constitutionalism in Nigeria. Our constitution was imposed on us by the military government, unlike the American constitution that was a product of dialogue, deliberations and discussions in 1787. And one of the issues that were thoroughly discussed was the power of the purse. And they agreed that the power of the purse should go to the congress.
Unfortunately, in Nigeria, we did not discuss most of the basic tenants of the constitution. As a result of that, we were not properly schooled as to the power of the purse, the power of the president and the power of the National Assembly, and because of that, we have this controversy now. If we truly understand the essence of constitutional democracy, and the presidential system, then we would know that the power of appropriation belongs to the National Assembly and not the executive.

Can the exercise of Legislative powers be challenged in the court?
I think there was a lot of controversy over this matter recently because of the speech credited to the Speaker. As far as I am concerned, I think the Speaker was only making reference to the provisions of legislative powers, immunity and privileges acts of 1961. And when you are talking about immunity, it is a hotly debated topic in Nigeria. Even when you have absolute immunity like in the case of the president, vice president, governors and deputy governors, immunity is only allowed while they remain in that office.

But that does not mean that they cannot be investigated if there is a commission of a crime. That is what the Supreme Court says. Even the judicial officers are protected in the exercise of their judicial powers; there is a form of immunity. So, to a large extent, the proceeding of the National Assembly is protected by law. And that is why in Section 3, the law is very clear that there is immunity from proceedings. When you look at it critically, because it says no civil or criminal proceeding will be instituted against any member of the Legislative House in respect of what is spoken before the House or committee or in respect of what is written in report to that House or to any committee thereof in any petitions, resolutions, motions, questions brought or introduced by that person.

Also, section 30 states very clearly that the courts cannot exercise jurisdictions over the acts of the President of the Senate and the Speaker, because neither the President nor the Speaker, as the case may be, of the Legislative House or any officer of the Legislative House shall be subject to the jurisdiction of any court in respect of the exercise (the emphasis is in respect of the exercise) of any power conferred or vested in him by or under the act of the standing order of that House.